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Rosenbaum v. Mediko

United States District Court, D. South Carolina

June 19, 2019

James Rosenbaum, Plaintiff,
v.
Mediko, Joseph Papotto, Missy Vanduser, Latonya Wineglass, Phillip Thompson, and Wayne Owens, Defendants.

          REPORT AND RECOMMENDATION

          Bristow Marchant United States Magistrate Judge.

         This action has been filed by the Plaintiff, pro se, pursuant to 42 U.S.C. § 1983.[1]Plaintiff, who at the time this action was filed was a pre-trial detainee at the Horry County (J. Reuben Long) Detention Center, [2] alleges violation of his constitutional rights by the named Defendants.

         All of the named Defendants have filed motions to dismiss and/or for summary judgment. As the Plaintiff is proceeding pro se, Roseboro orders were issued by the Court on December 11, 2018 and December 21, 2018, advising Plaintiff of the importance of dispositive motions and of the need for him to file adequate responses. Plaintiff was specifically advised that if he failed to adequately respond, the Defendants' motions may be granted, thereby ending his case. After receiving extensions of time to reply, Plaintiff filed several memoranda in opposition to the pending motions, with attached exhibits, on March 27, 2019. Reply memoranda were thereafter filed by the Defendants on April 3, 2019, and April 23, 2019.

         The Defendants' motions are now before the Court for disposition.[3]

         Background and Evidence[4]

         Plaintiff alleges in his verified Amended Complaint[5] that (at the time he filed this action) he had been a pretrial detainee at the Horry County Detention Center since July 12, 2016. Plaintiff alleges that the Defendant Mediko is a private company that (pursuant to contract with the Detention Center) provides the medical staff for the Detention Center. The Defendant Joseph Papotto is alleged to be the physician for the Detention Center, while the Defendants Missy Vanduser and Latonya Wineglass are alleged to be the Nursing Supervisor at the Detention Center and the Mental Health Counselor at the Detention Center, respectively. The Defendant Wayne Owens is alleged to be the Detention Center Director, while the Defendant Phillip Thompson is alleged to be the Sheriff of Horry County (and therefore legally responsible for the policies and operation of the Detention Center).

         Plaintiff alleges that when he first arrived at the Detention Center he was placed in a “detox cell” because he did not have access to his “prescribed medications”. Plaintiff alleges that after he was released from the detox cell, he asked to see the doctor because he was having severe pain in his shoulders, back, neck and knees. Plaintiff alleges he saw Dr. Papotto and told him that he had had some MRIs taken of his shoulders at the VA, and that Dr. Papotto said he would get the MRIs. Plaintiff alleges he also Dr. Papotto that he was on prescribed narcotic pain medications for his “severe pain”, but that Dr. Papotto told him the jail did not allow narcotic pain medications or any controlled drugs. Instead, Dr. Papotto said he would prescribe Plaintiff some muscle relaxers for his pain. Plaintiff alleges he also told Dr. Papotto that he had been prescribed Valium for panic attacks and anxiety, and that Dr. Papotto told him he would have to see the mental health nurse about that complaint. Plaintiff alleges that he subsequently saw the mental health nurse (“Jane”) and told her that he suffered from PTSD, panic attacks and anxiety, but that “Jane” told him he could not have Valium (the drug Plaintiff states he wanted) because the Detention Center had a policy of “no controlled drugs”.

         Plaintiff alleges that in September 2016 he told Dr. Papotto that the drugs he had prescribed for him “didn't work” and that he was still in a “lot of pain”, but that Dr. Papotto again told him that he could not prescribe “narcotics” for him as that was against Detention Center policy. Plaintiff also complains that in September 2016 he came in contact with blood “that wasn't mine”, and asked for an HIV test and a Hep C test. Plaintiff alleges that Dr. Papotto ordered him an HIV and Hep C test, but that he was subsequently told by the Defendant Nurse Vanduser that they did not do hepatitis testing at the Detention Center, and that the doctor “was not aware of that”.

         Plaintiff alleges that on November 22, 2016 he filed a grievance about the delay in getting his MRIs from the VA and that he told Dr. Papotto his shoulders, neck and back were causing him a lot of pain and that he needed to see an orthopedist and be given his “regularly prescribed pain meds”. Plaintiff alleges that Dr. Papotto responded by telling him that he did not need to see an orthopedic doctor and that his shoulders “are not a medical emergency”. Plaintiff alleges that he ultimately obtained his MRIs and showed them to Dr. Papotto in December 2017 or January 2018, and that Dr. Papotto told him that, according to the MRIs, it “looked[ed] like [his] right shoulder might need to be replaced[, ] but not for a few more years”, while his left should would “need surgery also”. However, Dr. Papotto again told him his shoulders were “not a medical emergency” and that he did not need to see an orthopedic doctor. Plaintiff alleges that instead, in August 2018, Dr. Papotto gave him shots in both shoulders.

         Plaintiff alleges that on June 23, 2017[6] he was moved from a single cell (B-3) to another cell (C-1) that had four inmates to a cell. Plaintiff alleges this caused him to have “bad panic attacks” and stress, causing his blood pressure to “skyrocket”. Plaintiff alleges that he spoke to the Defendant Wineglass in July and August 2017 and asked to be moved back to a single cell (B-3) due to his PTSD and other mental health issues, and that Wineglass told him she would move him back to a single cell. However, on August 16, 2017 Plaintiff filed a grievance about not being moved back to B-3, since he had not been moved. Plaintiff alleges he also filed grievances about not getting blood pressure checks or any medications for his high blood pressure. Plaintiff alleges that around September 1, 2017, he was told by Vanduser that Wineglass had told her that he was to stay in C-1. Plaintiff further alleges that on September 14, 2017 Wineglass told him “I am not moving you, because you wrote 2 grievances on me”. Plaintiff also alleges that when Wineglass asked him to describe to her the mental health issues Plaintiff alleged he was having, he told her he would only speak to her in “sick call”, because where they were “64 inmates [were] listening also”.

         Plaintiff alleges that in September 2017 he saw “Dr. Parmar” (a psychiatrist) and told her about his mental health issues and the problems he was having living with four people in C-1. Plaintiff alleges that Dr. Parmar then told Wineglass she wanted Plaintiff back in a single cell. Plaintiff alleges he also still wanted to be placed on Valium, but that Dr. Parmar was told by Wineglass that Valium was not allowed at the jail. Plaintiff alleges that he saw Dr. Parmar again on November 14, 2017 and asked her why she had “changed her mind about moving me” (Plaintiff alleges that Vanduser told him that the doctor had changed her mind about him moving), and that Dr. Parmar told him that she never changed her mind about moving him, and again told Wineglass to move Plaintiff to a single cell. Even so, Plaintiff alleges that he was not moved.

         Plaintiff alleges that in November 2017 and December 2017 he filed several grievances over Vanduser not giving him copies of his blood work, including that his current blood pressure meds were not working and had side effects. Plaintiff also alleges he was supposed to see Dr. Parmar again in December 2017 for a follow up, but that Wineglass was keeping him from seeing Dr. Parmar because she and Vanduser had still not moved him to a single cell like Dr. Parmar had ordered. Plaintiff alleges that in January 2018 he again filed grievances about his blood not being “taken care of” and about the delay in his seeing Dr. Parmar again. Plaintiff also alleges he asked Dr. Papotto if he had ever changed Dr. Parmar's orders back in November 2017 “like Vanduser said”, and he said he had not. Plaintiff alleges that when he saw Dr. Parmar again on January 19, 2018, he told her he was still having mental health and blood pressure issues “caused by living with 4 people in a cell” and that Vanduser and Wineglass were making excuses for not following her orders to move him to a single cell. Plaintiff alleges that Dr. Parmar again told Wineglass to move him to a single cell. Plaintiff alleges that he was finally transferred in January 2018, but to cell B-2 instead of B-3. Plaintiff alleges that he wanted to be in a single cell by himself, but still have Rec with other prisoners, but that B-2 had him in a cell alone and also Rec alone. Plaintiff also complains about not being allowed to watch tv or use the phone “everyday” and other restrictions that were placed on him while in this cell. Plaintiff alleges that his complaints were met with “lies” by Vanduser and Wineglass.

         Plaintiff alleges that in March 2018 he was seen by the sick call nurse for complaints about his eyesight. Plaintiff alleges he was told that they would not make an appointment with an eye doctor for him until he had arranged to pay for it. Plaintiff complains, however, that he should have been able to get free outside medical care from the VA. Plaintiff alleges that when he was called to medical for a nurse to give him an eye test, he wrote back to “see when I would be seen by the doctor”. Plaintiff alleges that Vanduser wrote back to him that he would not be sent to the eye doctor since he [Plaintiff] had not taken his eye test seriously. Plaintiff alleges that he was only given an appointment with the eye doctor after he agreed to pay the $89 fee for this appointment.

         Plaintiff alleges that on February 12, 2018 he sent a letter to the Defendant Mediko complaining about Vanduser and Wineglass and about Dr. Papotto refusing to send him to an orthopedist. Plaintiff complains that in response Mediko “did nothing”. Plaintiff alleges that on February 24, 2018 he wrote a grievance to the Defendant Owens about jail officers listening to his conversations with mental health workers and nurses and doctors, and again complained about this in a grievance dated August 1, 2018, but that “nothing was done”. Plaintiff alleges that on August 14, 2018 he then sent a letter to the Defendant Thompson complaining about “his policies” of not allowing Plaintiff his prescribed medications and not allowing him to get his shoulders fixed, but that he “never got a response”. Plaintiff seeks injunctive relief requiring the Defendants to provide him with the medical care he wishes, as well as monetary damages against the Defendants. As attachments to his Complaint, Plaintiff has submitted copies of various inmate grievance and request forms in which he complains about the medical care he is receiving at the jail, as well as a “To Whom it may Concern” letter in which he reiterates many of the allegations of his Complaint. See generally, Plaintiff's Verified Complaint, with attached Exhibits.

         In support of summary judgment, the Defendant Joseph Papotto has submitted an affidavit wherein he attests that he has been the doctor for the Detention Center since September 2015. Papotto attests that he also has a private practice, and that he spends approximately two days a week at the Detention Center assessing and treating inmates. Papotto has attached a copy of Plaintiff's pertinent medical records to his affidavit as an exhibit. Papotto attests that his first involvement with the Plaintiff was when he was booked into the Detention Center on July 12, 2016. Plaintiff underwent a medical screening that indicated he was under the influence of, or was withdrawing from, alcohol and/or drugs (Valium) that he had been taking. See also Medical Records, pp. 0234-0235. Papotto attests that he prescribed Plaintiff Clonidine (for his blood pressure), Chlordiazepoxide (for anxiety and acute alcohol withdrawal), Phenytoin (an anti-seizure medication), Vitamin B1 and multi-vitamins. Id., pp. 0221, 0224.

         Papotto attests that Plaintiff first complained of back and shoulder pain when he submitted two grievances on or about July 28th and 29th, 2016. Id., pp. 0188, 0491-0492. Papotto attests that he received notice of Plaintiff's complaint on July 30, 2016, which was a Saturday. Papotto attests that because he was not physically present at the facility on weekends, he called in a prescription for Ibuprofen 200 mg. Id., p. 0187. Papotto attests that he thereafter evaluated the Plaintiff on August 9, 2016, listened to his complaints and performed a physical examination, and concluded that Plaintiff had chronic shoulder pain but was not suffering from any acute trauma. He prescribed Plaintiff Meloxicam (a non-steriodal anti-inflammatory for pain) and Gabapentin (for neuropathic pain). Id., pp. 0181-0182, 0185. Papotto attests that Plaintiff next complained to him of shoulder pain two and a half months later, on October 11, 2016. Id., p. 0173.[7] Plaintiff reported at that time that he had been treated at the VA hospital in Charleston, South Carolina for chronic bilateral rotator cuff disorder. Papotto attests that he increased the doses of Plaintiff's Gabapentin and Meloxicam, and placed a request for Plaintiff's prior medical records from the VA.

         Papotto attests that the facility received Plaintiff's records from the VA on October 23, 2016, which were initially reviewed by a nurse. These records did not include any MRIs. Papotto attests that Plaintiff's records indicated that he had been taking Hydrochlorothiazide 12.5 mg. (for blood pressure), and that after reviewing these records he [Papotto] put in an order for Plaintiff to receive this prescription. Id., p. 0156. Papotto further attests that, meanwhile, on November 17, 2016 a nurse responded to Plaintiff's grievance about his VA records, and relayed to him that he [Papotto] had reviewed the records (but did not indicate that the VA records did not include any MRIs). Id., p. 0510. Papotto attests that Plaintiff had also submitted a grievance on November 4, 2016 about the upcoming expiration of his Flexeril (a muscle relaxant) prescription, and that in response he refilled Plaintiff's Flexeril prescription. Id., pp. 0151, 0508. Papotto also renewed Plaintiff's Gabapentin prescription on January 10, 2017.

         Papotto attests that January 12, 2017 Plaintiff submitted a grievance complaining about neck and shoulder pain. Id., pp. 0256-0257, 0517. Papotto attests that he thereafter examined the Plaintiff on January 17, 2017, and found that his condition was unchanged and that he had no acute injuries. Papotto attests that he changed Plaintiff's Flexeril prescription to a combination of Tizanidine (for muscle spasms) and Tylenol, and also increased the dosage of Plaintiff's Gabapentin. Id., p. 0256. He also ordered Plaintiff an extra blanket so that he could elevate his head while sleeping.

         Papotto attests that Plaintiff submitted another grievance on February 2, 2017, requesting prescriptions for Opana and Valium, which he had been taking prior to his incarceration. Id., pp. 0247, 0525. Plaintiff was placed on the sick call list, and Papotto attests that he met with Plaintiff on February 14, 2017. Papotto attests that Plaintiff was continuing to request that copies of his prior MRIs be obtained from the VA, and also requested a referral to an outside orthopedist. Papotto attests that he denied this request because, based on his clinical assessment of the Plaintiff, he did not need to see an orthopedist. Papotto attests that Plaintiff also requested narcotics, which inmates at the Detention Center are not given due to the risk of abuse and addiction. Even so, Papotto changed Plaintiff's Tizanidine prescription back to Flexeril to better address Plaintiff's symptoms. Papotto attests that Plaintiff made no additional complaints to him about pain during the next five months, [8] and that he renewed Plaintiff's prescriptions several times during that time period.

         Papotto attests that on July 21, 2017 Plaintiff complained that his pain medications had not been refilled. Id., p. 0549. Papotto attests that he reviewed Plaintiff's records, and prescribed him some Naproxen 500 mg (a non-steriodal anti-inflammatory). Id., p. 0311. Papotto attests that he then examined Plaintiff again on August 10, 2017, and that based on his physical examination and Plaintiff's complaints, he ordered another round of Tizanidine and 800 mg of Gabapentin. Id., 0306, 0308, 0311. He also told Plaintiff that the facility would again attempt to obtain copies of any MRIs from the VA. Thereafter, Plaintiff submitted another grievance on September 16, 2017 complaining about “liver pains” and worsening back and shoulder pain. However, when Plaintiff was seen by the nurse during sick call the following day (September 17, 2017), instead of discussing back and shoulder pain, Plaintiff talked about sinus related complaints and did not mention any back or shoulder pain. Id., pp. 0338-0339, 0571.

         In October and November 2017, Plaintiff was treated for pain in his right upper quadrant. Papotto attests that he ordered an ultrasound that showed a fatty liver and a benign right kidney cyst. At a follow up visit on November 2, 2017, Plaintiff's vital signs were stable and his physical examination was unremarkable. Papotto attests that he strongly suspected that Plaintiff was malingering. Id., pp. 0323-76, 0378. At Plaintiff's request, Papotto renewed his prescription for Tizanidine on November 13, 2017, and his prescription for Gabapentin on November 14, 2017. He renewed Plaintiff's prescription for Tizanidine again on December 23, 2017. Id., pp. 0346, 0369, Papotto attests that he next saw the Plaintiff for ongoing complaints of bilateral shoulder pain on January 11, 2018. Id., p. 0416. Papotto attests that Plaintiff had obtained his prior MRIs from the VA, which showed that Plaintiff had tendinopathies, small tears, and moderate degenerative joint disease in his right shoulder. Papotto attests that he explained to the Plaintiff that these were non-emergent problems and that, as a result, he did not need a referral to an outside orthopedist. Papotto attests that he did, however, approve an extra mat for the Plaintiff. Papotto attests that Plaintiff thereafter made no complaints of shoulder pain over the next six months.[9]Plaintiff did make several requests for prescription refills for his Tizanidine and Gabapentin during this period, which Papotto attests he ordered. Id., pp. 0384, 0397, 0434. Papotto attests that on April 25 2018 Plaintiff reported that Tizanidine was effective and that he wished to continue it, so he [Papotto] renewed Plaintiff's prescription that same day. Id., pp. 0436-0437.

         Papotto attests that on July 10, 2018 he met with the Plaintiff for complaints of tenderness and decreased range of motion in both shoulders. Id., pp. 0475-0476. Papotto attests that he administered a pain medication via injection into the right shoulder and increased Plaintiff's dosage of Tizanidine. However, he again denied Plaintiff's request for referral to an outside orthopedist because he assessed Plaintiff's shoulder pain as a stable, non-urgent, chronic condition that was responding to the treatment he was prescribing. Papotto attests that he thereafter administered another shot to Plaintiff's right shoulder on August 2, 2018.

         Papotto attests that, as evidenced by Plaintiff's (attached) medical records, he never ignored Plaintiff's complaints of pain. To the contrary, he prescribed Plaintiff several different medications in an attempt to minimize or eliminate his chronic pain. As reflected in Plaintiff's medical records, he also continued to review Plaintiff's progress and complaints each time he was due for a medication refill, even on weekends. Papotto attests that based upon his education, experience and training, it was his clinical determination that Plaintiff did not need a referral to an outside orthopedist, and that if his periodic examinations had ever suggested differently, he would have been referred. Papotto further attests that it is not his custom or practice to prescribe a medication simply because a patient desires it, particularly when the medication is a potentially addictive-forming narcotic, and that based on Plaintiff's subjective complaints and his [Papotto's] physical assessments, Plaintiff was a generally healthy male with no acute injuries and did not need narcotic pain medication. Papotto attests that he saw the Plaintiff each time he complained of worsening pain and prescribed treatment plans that appeared to successfully target his symptoms. See generally Papotto Affidavit, with attached Exhibits [Medical Records].

         The Defendant Melissa Van Duser[10] has also submitted an affidavit wherein she attests that she is a registered nurse (RN), and that she works at the Horry County Detention Center as the Health Services Administrator (HSA), a position she assumed in July 2017. Van Duser attests that, prior to that time, she had been employed at the Detention Center since June 2015 as the Director of Nursing. Van Duser attests that as HSA, she coordinates the medical services provided by the physicians and nurses at the facility, and also reviews and responds to inmate grievances and patient care issues. Van Duser attests that she has attached to her affidavit a copy of Plaintiff's pertinent medical records.

         Van Duser attests that when an inmate has a health care related question or wishes to be seen by medical staff, they submit a request or grievance through a kiosk in the inmate's common area. The grievance is then processed and answered by members of the medical staff, including herself, who triage the patient and determine how best to meet the inmate's needs. This process typically involves scheduling the inmate for an appointment with the doctor or nurse, following up on doctor's orders, and verifying that medications are being received and taken. Van Duser attests that between July 21, 2016 and November 4, 2018, Plaintiff submitted approximately 182 grievances, most of which she received and answered. See attached medical records, pp. 0489-0670.

         Van Duser attests that she answered two grievances submitted by the Plaintiff on November 16, 2016 and November 17, 2016 relating to Plaintiff's request for hepatitis C testing. Id., pp. 0510-0511. Van Duser attests that in response to these grievances, she reviewed Plaintiff's medical records and observed that on October 11, 2016 Dr. Papotto had noted that Plaintiff had requested testing for hepatitis C and HIV. Id., p. 0173. Van Duser attests that she answered these grievances by explaining that the detention facility did not order hepatitus C tests, while the outside vendor the facility used for HIV tests (Little River Medical Center) had re-scheduled his HIV test for the following week. Id., pp. 0510-0511. Van Duser further attests that in response to grievances submitted by the Plaintiff on November 17, 2016 and November 21, 2016, complaining that he had not been seen by an outside orthopedist, she reviewed Plaintiff's medical records from before his admission to the jail, which included records from the VA Hospital in 2015, and explained to the Plaintiff that because the injury to his shoulder was non-emergent and pre-dated his admission to the facility, any surgery would have to be scheduled for after his release. Id., pp. 0512-0513.

         With respect to Plaintiffs allegation that Van Duser refused to follow and/or interfere with Dr. Parmar's order that he be moved to a single cell, and that she “lied about it”, Van Duser attests that when Plaintiff saw Dr. Parmar on November 15, 2017, she did not order that he be transferred to a single cell. Rather, Dr. Parmar wrote “he is ok for now in the cell he is in”. Id., p. 0366.[11] Van Duser attests that she also answered Plaintiffs November 1, 2017 on November 20, 2017 grievances requesting a tranfer by explaining to him that Dr. Papotto, as the Facility Medical Director, could overrule any orders by the psychiatrist, although in this instance that is not what happened, since Dr. Parmar did not order a change in Plaintiffs cell. Id., p. 0596. As for Plaintiffs complaint that Van Duser refused to provide him with copies of his blood work, Van Duser attests that she and the Plaintiff had multiple communications on this issue between November 11 and 17, 2017, with her explaining to him each time that the facility policy is not to release paperwork containing protected health information to inmates during incarceration. Van Duser attests that she did not create this policy, but that it was her job to explain it to the Plaintiff, which she did. Id., pp. 0590-595.

         With respect to Plaintiffs allegations about not receiving his blood pressure medications in November, Van Duser attests that Plaintiff submitted a grievance asking for blood pressure checks on August 25, 2017. Id., p. 0560. Van Duser attests that she responded to the Plaintiff that his blood pressure readings had been in the normal range and thus he did not need further checks. Thereafter, on August 28, 2017, Plaintiff submitted another grievance requesting more blood pressure checks. This time, she responded that she had obliged and reordered his twice weekly blood pressure checks. Id., pp. 0560-0561. Van Duser attests that she did not receive any additional grievances about blood pressure medications or concerns from the Plaintiff until November 27, 2017, when he submitted a grievance asking when he would been seen for a change in his blood pressure medication due to his having “dry mouth”. Van Duser attests that Plaintiff did not complain that the medication was not working or that his blood pressure was too high, and that she answered this grievance by telling him that he was on the list to see the doctor. Id., pp. 0597-0598.

         With respect to Plaintiff's allegations that she failed to place him in a single cell and lied to support her actions, Van Duser attests that when Plaintiff saw Dr. Papotto on January 11, 2018, he noted (among other things) that Plaintiff wished to be moved to the medical pod, telling Dr. Papotto that the psychiatrist had made this recommendation. Id., pp. 0416. Dr. Papotto wrote in his treatment notes that he reviewed the psychiatrist's records, but that it was “unlikely [Plaintiff] needs to be moved since he remains stable both medically and emotionally”. Id. Van Duser attests that Plaintiff was thereafter seen by the psychiatrist on January 19, 2018, who wrote in her notes “Please do not have any cell mate for this patient because of PTSD and patient's fear of hurting others because of PTSD related symptoms”. Id., pp. 0405-0406. Based on this directive, on January 22, 2018 Plaintiff was placed on “house alone/rec alone” by the nurse at the facility. Van Duser attests that this designation means that the inmate is not to come into contact with other inmates, typically due to psychiatric issues that make the inmate a potential danger to themself and/or others. Id., pp. 0399, 0401. However, Plaintiff then submitted a grievance that same day (January 22, 2018) asking that he be allowed to be around others during recreational time. Id., p. 0617. Van Duser attests that she reviewed the psychiatrist notes, and responded to the Plaintiff the following day that public recreational time was not allowed for in the psychiatrist's order and that it was beyond her authority to change the order. Van Duser attests that Plaintiff thereafter submitted several additional grievances related to this order, and that she answered each one to the best of her ability after reviewing and discussing the order with the psychiatrist. Id., pp. 0618-0621. ...


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